Analytic of Equity

Thesis 2: Aristotelian equity is not primarily legal.

When Aristotle discusses epieikeia in the Ethics it is in order to resolve a puzzle involving the common usage of equitable and just as applied to people – are they the same thing or different? The answer is that equity is a certain kind of disposition to do justice, namely particular justice. Equity is thus a personal virtue, not a legal norm.⁴⁷ Of course in the Ethics Aristotle does refer to the lawgiver and to the need for specific decrees versus general laws, but it is not clear how, if at all, this relates to any specific institutional arrangement. The discussion in the Ethics seems to describe an equitable Athenian citizen, and it must be remembered that Athenian citizens often litigate, sit on mass juries and vote in the Assembly.

In the Rhetoric, equity seems closer to a legal norm, especially as regards relaxing the law in favor of equity, and this is correct. However, it is not clear that Aristotle’s account of arbitration is accurate nor that the Athenians would have likely been responsive to a litigant requesting that they relax their beloved laws – to the contrary, and hence we do not see actual litigants making such arguments.⁴⁸ Indeed, as one would have expected from the Ethics, and as we saw with Demosthenes above, litigants tend to appeal to epieikeia as a personal characteristic, including trying to claim that they do not know the law that well – because if one did know the law well, then that would make one appear as a “stickler for the law.”⁴⁹

The best way to understand how Aristotelian equity looks like a legal notion and is one to some extent even while it is primarily ethical is to consider why Aristotle in the Rhetoric gives such importance to appeals to ethos, namely to one’s character. This was not only for the reasons that would be familiar to us, namely the import of credibility, empathy etc. Athenian trials were often elite agonistic contests, contests that were specifically channeled into the courts where they could be adjudicated democratically by the mass citizen jury. The relevant personal and material contributions to the city made by litigants were relevant to their case, as was their ability to demonstrate their behavior as consistent with the values of the democracy, as well as elite aristocratic values. This complex political arrangement is mirrored by the dramatic and political setup of a classical tragedy, the elite protagonists on stage, the “common” chorus below, performed before the people (sitting in their political subdivisions) and sponsored by a member of the elite.

For instance, following David Cohen, there was the rhetorical challenge faced by Demosthenes in his oration/prosecution Against Meidias.⁵⁰ The clash between Demosthenes and Meidias is part of a multi-generational elite feud that has already involved numerous lawsuits. The particular incident in question was a slap Meidias delivered to Demosthenes as he marched publicly with the chorus he had sponsored for the annual festival at which tragedies were performed. Demosthenes wishes to sue Meidias for the slap. The problem is thorny, as the same aristocratic norms that the slap violated would also have dictated an immediate physical response (which this suit is now replacing, and this restraint is, in a sense, equitable, as we have seen). Furthermore, Demosthenes has come to a mass democratic jury and so he is limited in the extent to which he can appeal to aristocratic values at all. Apparently, the speech we have in which Demosthenes attempted to navigate these challenges was never given, which indicates perhaps the difficulty of his situation.

Establishing one’s equitableness could be tantamount to victory, and Aristotle unambiguously urges such an appeal and gives his students the tools to do so, e.g. “look at how long it took before I came to court, and only after arbitration failed…” The upshot of the primarily ethical character of Aristotelian equity is that no direct return to it as a legal norm appropriate for our culture as possible – at least not without further argumentation.

Thesis 3: There is no unified concept of equity.

As the discussion of equity to this point should make clear, there is no unified concept of equity, nor a single true concept of equity. At this point, I would like to catalog the different aspects of equity that we have come across. In so doing, I will try to explain why these different aspects are distinct and will elaborate upon those aspects that have not yet been developed. Most of these aspects will be familiar from Aristotle or from the brief history above. Horn’s discussion of aequitas in Baldus is very sensitive to the different aspects of equity, and so I will generally include references to the relevant sections of his work.

Organizing this list poses a challenge since the creation of this list is meant to make the argument that there is no unified concept of equity, which also means that the nineteen aspects discussed below cannot be derived from one another or from a relatively short series of assumptions and rules.⁵¹ An analogy to what I have in mind would be the kind of lists that one finds in Wittgenstein, lists that emphasize the irreducible variety of uses to which a word may be put, e.g. what it means “to see.”⁵² That said, not only is Wittgenstein’s method maddening, but his analysis is generally atemporal and only meant as an illustration as part of a larger argument about language. In our case, the concept of equity has a rich history and I would like to say something about this concept, and so, at the risk of undermining the argument about the variety of equity, I will class the aspects of equity below under six general categories, discussed below, from conceptually thinnest to richest. Within each category, should there be more than one aspect, the aspects will loosely be organized from most paradigmatically a fit for the category to most clearly overlapping with others.

As for the general categories, first, there is equity as a matter of logic. Second, there is equity as procedural. This is to say that some aspects of equity do not go to the grounds of an adjudication, but only to its method. Third, there are those aspects of equity that go only to the substance of the adjudication and are facially indifferent to method. I am exceedingly wary of using the all too convenient procedure-substance distinction. Not only is this distinction dubious in the abstract, but the distinction itself emerges from our legal tradition in the context of an assault on certain aspects of equity. Specifically, I am referring to Blackstone’s innovative use of the procedure-substance distinction as a means of arguing that there was no substantive difference between law and equity, only a matter of procedure.⁵³ The triumph of this perspective is intimately connected with the eventual abolition of separate courts of equity – i.e. if the substance is the same, why the profusion of procedure? Despite these reservations, there is clearly a distinction between procedure and substance, even if only as points on a continuum. Furthermore, I am not claiming that the procedural aspects of equity have no substantive implications, nor vice versa, though I am claiming that there is no necessary connection between any of the procedural (or logical) and substantive elements, e.g. natural equity does not require an abbreviated procedure.

Fourth, there is equity as it relates largely to who will be adjudicating; this is the political element of equity. Fifth, there are aspects of equity that do not fit into any of the other categories because they are historically contingent, “path dependent” to use the contemporary jargon. Sixth, at least many of the other aspects of equity discussed take a stand, at least implicitly, on metaphysical questions, such as what there is; this is the most obscure and least addressed aspect of equity.

Equity and Logic

1. 
   Equity can be conceived as a corrective to law insofar as it is general and cannot reach the particular case. There is no necessity that this stretch to the particular occur through an appeal to intent or be applied to mitigate harshness. There also need not be any discretion involved since what equity can require is that the matter be referred to the sovereign with the authority to make new law. This seems to be Aquinas’ strong preference,⁵⁴ and it has roots in Aristotle’s discussion of those matters that are suited to specific decrees rather than a general law.
   

Equity and Process

2. 
   Equity is associated with a simpler or more flexible process. Arbitration is not the only way one could see equity as influencing process. The Court of Chancery, for instance, saw itself as doing equity in contrast to the rigidity of the common law.
   
3. 
   Equity is also related to compromise. This is another feature associated with arbitration, or at least arbitration as mediation, but one that is ultimately contingent. The equitable litigant can simply settle for less and the contemporary judge, deciding equitably, can come up with a creative solution that completes vindicates neither party, e.g. a purchased injunction.
   
4. 
   Equity can also mandate a more fact-intensive inquiry, particularly in connection with more technical facts. This aspect clearly goes back to Aristotle as well; for instance in his insistence in the Rhetoric on the equitable man’s taking a broader view. It may be thought that this aspect is subsumed under other aspects, like discretion, but there is no reason that a judge might not be required to undertake an extensive factual inquiry, and one governed by rules that are to be applied strictly. One might think here of the role of the Delaware courts, particularly the chancery court, in connection with American corporate law, namely, as a court of equity this is a court that makes extensive factual findings in a specialized area,⁵⁵ which is not unlike why the Supreme Court found arbitration appealing because of the arbitrator’s knowledge of the “law of the shop.”⁵⁶
   
5. 
   A call for equity can simply be a call for discretion. On some level, this idea too is in Aristotle insofar as it is possible for the law to be relaxed if so decided by the Athenian mass citizen jury, though we should note that Athenian juries did not deliberate or publish judicial opinions. Following Meyler, there was recognition in the 17^th century that the discretion of juries allowed them to decide equitably.⁵⁷ It is more common to see equitable discretion as exercised by an official like the praetor or the chancellor. One key difference between the two types of discretion is on what basis it is being exercised – hence this aspect is being discussed under process and not substance. Juries are presumably drawing on the norms of the community, while the chancellor at least (in contrast to the praetor) is appealing to a conception of justice that may or may not comport with that of the community.
   
6. 
   There is equity as a method of interpretation, particularly one that goes to the intentions of the legislator.⁵⁸ Clearly this goes back to Aristotle and is connected to the logical problem of the general and the particular, but note that Aristotle does not distinguish between a particular adjudication according to intent and a general principle of interpreting statutes. By the time of Baldus, but also in the work of Hake, statutory interpretation and mercy have been merged insofar as an especially strict interpretation of a statute is appropriate if the result is going to be harsh (i.e. the statute’s scope is being narrowed);⁵⁹ this is in contrast to how purposive construction is generally seen in contemporary jurisprudence, i.e. as broadening the scope of a statute. This is why this famous aspect of equity is grouped under process and not substance; the look to intent is indeterminate as regards the substantive law to be applied or the outcome.
   

Relatedly, there is a distinction between interpreting according to the supposed intent of the legislator and according to the common good. First of all, if the common good offers a principled means of decision making, then this presupposes that the common good is unitary and readily identifiable, which, for instance, one need not assume if one is simply looking to legislative intention. Interpreting statutes so as to advance such a common good clearly is a substantive notion of equity. Further, as we’ll return to shortly, assuming that the legislator’s intent is to advance the common good can itself be a powerful political move.

There are also separate questions as to how equitable interpretation relates to common law precedents in contrast to statutes or to a code. This is especially interesting since the authors of the codes often place the requirement to act equitably within the code, e.g. the obligation to negotiate in good faith.⁶⁰ There is also the question of how to interpret a constitution. John Marshall clearly thought that a form of equitable interpretation was appropriate.⁶¹

7. 
   Equity has also been seen as the appropriate standard for arbitration in contrast to law. To the extent that the appeal to an arbitrator ruling “ex aequo et bono” was ruling according to equity, then a certain arbitration tradition of the ius commune (with Roman predecents) is a development of this Aristotelian insight.⁶² Note that this type of arbitrator lives on in German law where the parties may agree that a “Schiedrichter” is to decide between them not on the basis of law, but on the basis of fairness and equity.⁶³ This aspect too is bordering on the substantive, but note that equity here is still undetermined – is this a matter of natural equity, local custom, or, perhaps the arbitrator is to try to replicate the results that would have been achieved at law, only more expeditiously.⁶⁴
   
8. 
   Equity has been associated especially with international law. This connection can only be made tenuously through Aristotle if one gives priority to the mention of a general law in Rhetoric 1.15 (see discussion below). Still, the reference is there and certainly by Cicero equity is applied to all nations and is particularly relevant to the interpretation of treaties. This is an aspect of equity developed by Grotius and the natural lawyers that followed, such as Wolff,⁶⁵ and is thus intimately related to certain substantive notions of law, particularly natural law. Nevertheless, especially in our world, there is a lot of positive international law and so one need not appeal to natural equity as governing the law of nations in particular. Equity is thus arguably appropriate for international law just as it is for all law on procedural grounds, say as a means of short-circuiting costly process or as a means of interpreting international statutory law,⁶⁶ just as equitable interpretation was what was lacking in the case of Cicero’s general.
   
9. 
   There is the notion of equity as particularized justice. There is no necessary connection between equity as a corrective to a general law and attending to the specific circumstances since there need not be a general law at all. Indeed, to the extent that we believe that particularized justice can be delivered and is superior, then general laws are to be eschewed. Prioritizing the specific makes heavy, indeed impossible requirements on procedure and on the whole structure of a legal system, and to the extent this decision is made it must be because of a substantive commitment.
   

Equity and Substance

10. 
    Equity is that which is in accord with the dictates of a fixed higher law. For Aquinas, for instance, this is the law of God as discoverable by human reason.⁶⁷ There is precedent for this in Aristotle because in the Rhetoric he does recommend an appeal to an equity that is constant like the general law and is according to nature (phusis - 1.15). This passage is in tension both with his position in the Ethics as well as his earlier characterization of equity in the Rhetoric (at 1.13), where equity is simply what goes beyond the local written law. One way to resolve the tension is Winthrop’s, who notes that in Rhetoric 1.15 Aristotle is giving advice for what to do when it is manifest that the written law is against you.⁶⁸ Curiously though, we have already seen that this is not a path followed by contemporary orators and so it is odd that Aristotle throws in this bad advice that also conflicts with his more careful consideration of the relation of equity to law. I would suggest that a way to understanding this is to note that in 1.13 Aristotle is discussing technical means of persuasion, whereas at 1.15, where we get the appeal to unchanging equity, we are dealing with non-technical means. The technical arguments must be invented by the rhetor, while the non-technical must simply be used as is (1.2), and hence Aristotle’s more passive listing of arguments to use in contrast to the arguments to be invented based on how things actually are (as in 1.13).⁶⁹
    
11. 
    There is equity as drawing upon the unwritten, but local and mutable law of the community.⁷⁰ In connection with Aristotle, see later discussion.
    
12. 
    Equity has been and is equated with mercy. There is no question, as discussed above, that equity becomes associated with mercy in a Christian sense.⁷¹ Equity is not mercy in Aristotle. The word translated in the passage on page _ as “excuse,” following Nussbaum, means literally to “judge with,” and in the context the judging with the litigant is trying to achieve is clearly meant to excuse.⁷² Nussbaum notes that this “judging with” stops short of mercy because Aristotle thinks it is slavish to show mercy.⁷³ I will develop just how and why “judging with” stops short of mercy shortly, but the key clue here is I think to ask just with whom one is supposed to be judging.
    
13. 
    There is equity as a corrective to the law when it operates so harshly as to undermine itself – summum ius, summa iniuria est. Note that this does not exactly emerge from Aristotle since it is a matter of personal virtue not to be stickler for law. The principle of summum ius operates as a principle within law itself when it would operate harshly according to some external standard, like natural equity for Domat. This aspect then is in one sense procedural since it brings in no new content, but it presupposes an external standard and hence I am categorizing it under “substance.”
    
14. 
    There is also equity as equality or fair division. Insofar as equality is a part of justice for Aristotle, and equity is a type of justice, one can trace this aspect of equity back to Aristotle as well.⁷⁴ Clearly a commitment to a fair share is a substantive norm, though not one with a lot of traction of its own.
    
15. 
    Equity can be simply a personal virtue. See discussion above.
    

Equity and Politics

16. 
    There is or could be a political valence to every aspect of equity discussed so far. For instance, if equity is discretion then it is a political question who gets to exercise equity. Further, since the intentions of the legislator are not self-actualizing, it is a political question as to who gets to do the interpreting and on what basis. Connected with discretion, the appeal to equity was a justification for imperial changes to the law already in the time of the roman emperors and thus the claim that the canon law is more equitable was a direct papal challenge to the holy roman emperor.⁷⁵ Ockham, appropriately, turns this argument back around and uses appeals to equity and the common good as a means of advancing imperial power - at the heart of his claim is that it is the canon law that is reified and must be given life through equitable interpretation.⁷⁶
    

As for the import of a higher law, Goerner claims that Aquinas buried his teaching on a natural right that trumps even natural law, much less a base ruler, because of its radical political implications.⁷⁷ Grotius’ discovery that natural law protected freedom of the seas had immediate implications for Holland.⁷⁸

In the case of 16^th and 17^th century England, equitable interpretation of statutes according to the common good had the political implication of restricting the king:

Coke’s emphasis [following Plowden] on the freedom of the judiciary to construe the words of statutes “according to the true intent of the makers of the Act, pro bono publico” had the effect, as Alan Cromartie has written, of conceptually reducing the king to the position of an instrument of the public good, and of binding him to the priorities of the common law.”⁷⁹
However, equity could also be associated with the discretion of the Chancellor, either as representing the king’s discretion or as applying a higher law. But, as we have seen, there is also the equitable discretion of the jury that reflects the sense of the community. The upshot here is that, depending on the sense of equity and the political and metaphysical context, the political implications of equity can be dramatically different.

Equity in History

17. 
    There is equity as a contingent historical system of doctrine and procedure that embodies some or all of the aspects of equity discussed above and complements law.⁸⁰ “Without the mysterious hardening of common-law procedures,” there may not have been systematic problems for which an institutional solution, namely the Chancery, was required.⁸¹ Insofar as a thinker like Pound associates equity with discretion, the very size of the systematic lacunae created by the rigidity of the common law impelled the so-called Court of Equity on its path to self-destruction, i.e. once the Equity Court developed its own doctrine and precedent it was ready to be re-assimilated into the law.⁸²
    
18. 
    There is also the appeal to equity as making a descriptive claim about how most disputes are actually resolved. This goes back to epieikeia as what is seemly and proper. On this reading, Aristotle is reminding his students (in the Rhetoric) that most disputes are not resolved in court and to the extent that they are, are generally not decided on “legal principles.” This aspect of equity is picked up by the Realists. For instance, here is Radin:
    

The valuations which the iudex-arbiter makes depends on some system of norms. They may be standards of decision as to benefits conferred or standards of choice among legal propositions or standards by which it is determined whether a proposition shall become a legal one. But the norms themselves are not peculiarly legal at all. They may be logical norms. Or they may be distinctly ethical. I make bold to assert that they are frequently aesthetic. And they are not changed in this respect when it is a judge or judicaster who applies them.⁸³
Equity as Metaphysical

19. 
    Finally, there is equity as preserver of difference. Once equity is distinct from law, as it is in many of the senses listed above, then two consequences follow. First, in some sense all is not law. That which is distinct from law may not be a full-blown alternative, like natural law, but there is an acknowledgement of some limit to law. This leads to the second key question, which is what makes law equitable. This is the central question to which Hake addresses himself,⁸⁴ and his answer is that the law is equitable through incorporating many of the features of equity discussed above, and most especially through pursuit of the legislator’s intentions as consonant with a discoverable common good.
    

The difference between equity and law tends to track other differences, such as the difference between humans and god(s) and the difference between humans and things. The difference between humans and the divine is clearest in the context of a thinker like Aquinas who believes that there is actually a natural law provided by God against which human law is to be measured and by which human law is to be limited. Yet it is the basic fact of human finitude, especially as regards knowledge of the future, which drives many of the aspects of equity discussed above. It is because humans can only generate finite rules that the rules can turn out to be indefinite, harsh, or unfair in a given case. Additionally, even if rules could be perfectly ordered, human reality is not.⁸⁵ As Gadamer notes, Aristotle’s account of epieikeia argues that it is a peculiarity of the skillful judge, that unlike the skillful craftsman, a judge can demonstrate her superior skill by not exercising it, i.e. not applying what she knows to be the rigor of the legal system in which she is an expert.⁸⁶

As regards the distinction between humans and things, human law cannot operate as automatically as a law of nature precisely because humans in their finitude could not apply such laws and, more importantly, as purposive beings, such laws would be untrue to what humans are. This point is most easily seen in the relation of equity and arbitration. Humans have goals and in the context of many disputes the goal is not to be found as a deciding between which party is correct. For instance, if the dispute is about a contract, and the disputants have a prior relationship and wish to have one in the future, then it may be the highest interest of both parties to find a solution that allows both to pursue their common purposes in the future. It is in this context, as Aristotle intimates, that it is especially helpful to have an arbitrator who cannot only mediate, but can dispense solutions that are compromises and not absolute vindications of one side or the other according to law. Yet, as Cicero’s general reminds us, there is the question of what binds the arbitrator, and here too equity is implicated as the standard that binds the arbitrator as well as the parties.⁸⁷